Report No. 41

20.6. Section 245.-

A controversy has arisen whether the examination of the accused person himself is compulsory under section 342 in a summon.-case. That section occurs in the Chapter on "General Provisions as to Inquiries and Trials", and it provides that the Court shall question the accused "generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence". Some High Courts are of the opinion that this provision applies to the trial of summons cases, as it occurs in the Chapter meant for all inquiries and trials, while some High Courts think that it is inapplicable to summons cases, as the accused is never, in such cases, called on for his defence. We feel that the examination of an accused would be useful in all cases, and we intend making a suitable clarification1 in section 342.

In regard to section 245, however, the question would be whether this examination must be of the accused in person or whether his pleader can be examined if the accused's attendance has been dispensed with. Considering the general nature of summons cases, we think no harm would occur if the pleader is examined instead of compelling the accused's attendance, unless of course the court considers it necessary to do so. In other words, we prefer to leave this matter largely to the discretion of the Magistrate and merely enable him to examine the pleader if he thinks that sufficient or to compel the attendance of the accused and examine him in appropriate cases. As we intend to provide for this in section 342, we propose to omit the words "and (if he thinks fit) examining the accused" from section 245(1). No other amendment is required in this section.

1. See para. 24.50 below.

20.7. Section 246.-

In Chapter XIX of the Code concerning the charge, there is a provision that a person charged with one offence may be (if there is evidence, of course) convicted of another offence for which he might have been charged according to the provisions of that Chapter.1 As there may be no charge framed in a summons case, a somewhat similar provision has been made in section 246 which says that a Magistrate may convict the accused "of any offence triable under this Chapter which from the facts admitted or proved he appears to have committed whatever may be the nature of the complaint or summons".

The language used here is very wide, but we have no doubt that it is not the intention that a person accused of a particular offence triable under this Chapter, that is as a summons case, can be convicted of a totally different and unconnected offence about which he may never have been questioned and against which he may never have defended himself. We, therefore, propose that a qualifying clause "if the Magistrate is satisfied that the accused would not be prejudiced thereby" should be added to section 246.

1. Section 237.

20.8. Section 247.-

Section 247 seemingly requires the presence of the complainant in a complaint case at every hearing; and prior to the amendment of the Code in 1955, the rule was that if the complainant absented himself, the accused must be acquitted unless the Magistrate thought it proper to adjourn the hearing. It was evidently felt that this rule was too harsh, and a proviso was added in 1955 saying that "where the Magistrate is of opinion that the personal attendance of the complainant is not necessary" he may dispense with such attendance.

The rigour of the original rule has thus gone, and the whole thing is left to the discretion of the Court which, we assume, is being properly exercised. It has been suggested that if the complainant is a public servant or the complainant is properly represented by a pleader, the case should not be dismissed because of his absence. We have, however, no reason to think that in such situations the Court will not be persuaded to dispense with the presence of the complainant, so that the provision of law as it stands and as it is intended to be worked is in our view adequate.

The only change which we suggest in the section is to extend the scope of the proviso so as to empower the Magistrate to proceed with the case where the complainant is represented by his pleader or by the officer conducting the prosecution.

A question has arisen whether the complainant's death ends the proceedings in a summons case; and we find that different views have been expressed on this question. As a matter of policy, we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, that the decision should be left to the judicial discretion of the court, and the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily.

In the light of the above discussion, section 247 may be amended so as to read as follows.-

"247. No.-appearance or death of complainant.- (1) If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of su.-section (1) shall, so far as may be, apply also to cases where the no.-appearance of the complainant is due to his death."

20.9. Section 248.-

Section 248 enables the complainant to withdraw the complaint with the Court's permission, and the accused is then acquitted. It has been doubled if the complaint can be withdrawn regarding some of the accused if there be more than one, and one High Court has held that the whole case against all the accused stands withdrawn if it is withdrawn regarding some of them. We think that this power, like that of compounding an offence, should be exercisable concerning each accused separately when there are more than one accused. We propose that section 248 may be amended to read:

"248. Withdrawal of complaint.- If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn."

20.10. Section 249.-

No change of substance is necessary in section 249. The reference to the District Magistrate may be replaced by "Chief Judicial Magistrate", and for the words "any other Magistrate", the words "a Magistrate of the second class" may be substituted.

20.11. Section 250.-

Section 250 of the Code is designed for payment of compensation to those accused against whom frivolous or vexatious complaints are brought in Court. Apart from providing that compensation upto on.-half of the fine which the Magistrate can impose can be awarded to the accused, it lays down the procedure governing such proceedings. Notice to the complainant is necessary, and of course he has to be heard in reply, and against the final order, an appeal lies. The procedure is, we think, satisfactory. We are not, however, satisfied with the scope of the power given to the Court. At present, the Court must be satisfied that the accusation "was false" and either frivolous or vexatious.

We should have thought that a false accusation would be necessarily vexatious; but that view has not found favour with the Courts, and we understand that in very few cases, Magistrates resort to section 250 on the view that its requirements are rarely satisfied. To discourage frivolous complaints, it would, we feel, be proper to widen the scope of this provision. It is obvious that a complainant who brings a false complaint knowing it to be false needs to be punished. Knowledge on the complainant's part is, however, a subjective matter, and in any case hard to prove.

We propose to put in its place on objective test, namely, the total absence of any, reasonable ground for the accusation. In most cases, we think this would be the same as actual knowledge of the falsity of the accusation. We therefore propose, that in any case where the Magistrate acquits or discharge the accused and is further of opinion that there was no reasonable ground for making the accusation against them or any of them, he may award compensation to the accused. The only other change we suggest is that the limit of no.-appealable orders under this provision when made by a first class Magistrate should be raised from Rs. 50 to Rs. 100. No change in the procedure is required.

The following amendments may be made in the section.-

(1) in su.-section (1), for the words "that the accusation against them or any of them was false and either frivolous or vexatious" the words "that there was no reasonable ground for making the accusation against them or any of them", shall be substituted;

(2) in su.-section (2), for the words "that the accusation was false and either frivolous or vexatious", the words "that there was no reasonable ground for making the accusation" shall be substituted; and

(3) in su.-section (3) for the words "fifty rupees" the words "one hundred rupees" shall be substituted.